Endless Litigation Dept: Al Shimari lawsuit dismissed yet again

Al Shimari, one of the few human rights/corporate accountability cases to have survived appellate review after the imposition of Kiobel‘s new extraterritoriality requirements, was recently dismissed, yet again, by Virginia federal judge Gerald Lee on June 18, this time on political question grounds.  In short: “a decision as to the merits of the torture and conspiracy claims alleged in Plaintiffs’ Complaint would require the Court to question the sensitive judgments of the military.”  So, out it goes.

Aggravatingly, the court gets to this conclusion by finding that “the U.S. military chain of command exercised total control over how military and civilian interrogators performed the interrogation mission at Abu Ghraib.”  If this reasoning is upheld, we’ll have nice little circle, given that the government has (largely successfully) disclaimed responsibility because the atrocities were committed by contractors, not military personnel.

CCR and it co-counsel will appeal.  But the Shimari case is now seven years old — part of litigation that has been going on for 11 years, seeking some measure of justice for the victims of the atrocities of Abu Ghraib.   While the fight continues, the case in the meantime continues to stand next to the U.S. government’s refusal to accept responsibility or impose accountability on anyone other than a few rank-and-file so-called “bad apples.”  U.S. “exceptionalsm” at its ugliest.

Why the U.S. even bothers going through the motions of, say, condemning brutalities by dictatorial regimes, or praising the advancement of human rights is beyond me.  To rest of the world it will all be taken as rank hypocrisy, until we address Abu Ghraib and other issues with the seriousness they deserve.

Obama’s ocean-liner pessimism in light of the Obergefell decision

Friday’s U.S. Supreme Court decision finding a place for same-sex couples in the fundamental right to marry is a historic moment for human rights and a shining example of an increasingly rare beast – the vindication of rights through litigation.

It is also a major political victory for Barack Obama.  I took it all in on Friday in the context of finally getting around to listening to Obama’s much-discussed interview with Marc Maron, whose podcast has been a part of my life since I think it’s late teens or early twenties (it’s now at episode no. 615).  In it, Obama defended the incrementalism that has marked his presidency in the most robust terms I have heard.  He likens social change to steering an ocean liner, arguing that ships that big, like societies, don’t turn 40-50 degrees all at once, and you just have to be happy with making a 1-2 degree turn in the right direction and hopefully live long enough to appreciate the change that is made in any significance.

But the same-sex marriage victory suggests Obama’s pessimism might be overplayed.  On this issue, and gay rights generally, he has shown that social change can come about in sweeping fashion, especially where it is driven by principle and conviction by the executive branch.  On gay rights, Obama’s presidency has followed a style entirely unlike the incrementalism and defeatism that has characterized his approach to just about every other issue (at least since health care).  In 2011, the administration announced that it would not defend the Defense of Marriage Act in courts—not just disagreeing with it, but stating that it was unconstitutional and casting it (correctly) as morally repugnant.  In 2012, of course, first Biden and then Obama came out in support of same-sex marriage rights, and the Solicitor General’s office filed briefs in support with the Supreme Court.

But the work that the administration did went far beyond simply expressing a political preference; it used a variety of tools and leadership platforms to unapologetically frame it as the civil rights issue as our time and to frame opposition as oppressive, irresponsible, and disrespectful sometimes to the point of hateful—a harsh characterization but one based on the facts.  In his January 2013 inaugural address, Obama placed gay rights directly in the mainstream of the struggle for sex and race equality: “Seneca Falls, and Selma, and Stonewall.”  In 2013 and 2014, the Justice Dept took aggressive steps to recognize same-sex marriages to the maximum extent possible at the federal level.  And when the Supreme Court stayed a Utah federal court decision in favor of same-sex marriage, thus leaving 1,300 marriages that had been consummated in the interim in the lurch with Utah’s governor openly questioning the legal status of those marriages, the DOJ took the unequivocal position that the marriages were valid and would be respected at the federal level.  The move left Utah looking terrible, bent on ripping consummated marriages out of the hands of loving couples who had finally realized their dreams.  The DOJ took the same position when the situation arose again with Michigan, and even brought similar pressure to bear on the Supreme Court itself.  Throughout the process, the administration kept steadfast despite pressure from sensitive constituencies and allies, like African American pastors.

I don’t know what Obama’s position is on whether or how much credit he deserves for Friday’s historic marriage decision.  In my view, he deserves a lot—he and his team showed exemplary, unflagging, and inspiring leadership on the issue and it made a huge difference.  It turned the ship around, not by incremental degrees but in a sweep of change in, really, the space of only 3-4 years.  But the analysis also shows, in my view, the larger tragedy of the Obama administration.  If he had shown the same leadership on other issues that (I suspect) he believes in but that he has instead swathed in ocean-liner pessimism—torture, militarization, immigration, environmental protection, human rights—imagine where we could be.

Last blog up on HuffPo

Under the title “Chevron’s ‘Fight It Out On The Ice’ Strategy For Ecuador Case Is Slipping, Fast.”  First in a series of posts in the coming weeks, ahead of the Apr. 20 oral argument on Chevron’s RICO case before the Second Circuit, that will examine how the disturbing and largely trumped-up campaign to taint Chevron’s Ecuadorian victims and the environmental judgment they won as “fraudulent” is steadily falling apart, and what it means…

Cracks In Chevron’s “Fight On The Ice” Strategy

Nearly a decade ago, Chevron Corporation issued a public statement warning the Ecuadorian communities who were plaintiffs in a massive environmental case against the company in Ecuador that they would face “a lifetime of appellate and collateral litigation” if they continued to vigorously pursue their claims.  A few years later, perhaps thinking they hadn’t been understood, Chevron sharpened the message, telling a reporter on record that regarding the claims, which demanded compensation sufficient to remediate hundreds of pond-sized pits of oil sludge and the effects of the 18 billion gallons of wastewater that even the company admits it dumped during 25 years of operations in the Ecuadorian Amazon, the company would “fight until hell freezes over . . . and then we’ll fight it out on the ice.”

I’ve worked with the Ecuadorian communities on the plaintiffs’ side of the case for over a decade now.  Though I was on a sabbatical of sorts when Chevron first made these promises, I was aware of them but didn’t think much except that it confirmed my beliefs that the company was fundamentally piggish and brutal and would need to undergo deep reforms before it would do the right thing.

Looking back, I see things more clearly.  For Chevron, hell froze over on February 14, 2011, the day a small provincial court in Ecuador—the sort of country Chevron in its heyday used to treat like a private hacienda—issued a massive environmental verdict against the company.  The “ice,” which had been gathering for a year or so as Chevron saw the verdict coming, then followed.  The scale itself is impressive, epochal: dozens of lawsuits against the Ecuadorians’ lawyers and consultants (including myself); lawsuits against every funder of the Ecuadorians’ effort, including in faraway jurisdictions like Gibraltar; a “racketeering” lawsuit against the case’s leaders that the company pushed all the way through a seven-week federal court bench trial in New York; a decade of ferocious litigation against the government of Ecuador itself, under the U.S.-Ecuador Bilateral Investment Treaty, claiming a “denial of justice” in the refusal by Ecuador’s executive branch to quash the case.  All this advanced by a team that included, Chevron told a federal judge a few years back, several dozen law firms and literally thousands of lawyers and operatives.

But the “ice” was more than that—colder, more biting, and more isolating than I could have imagined.  It was, at bottom, a wrenching recasting of the global public narrative about the Ecuador environmental case, framing the life-long social justice activists who led the case as a greedy and villainous fraudsters, the affected communities themselves as either “irrelevant” (as Chevron has described them) or criminally complicit, and Chevron itself as the true victim of the whole situation.

Chevron’s success in propagating this counter-narrative (a fundamentally false one in my view, for reasons I’ll get to) was either stunning or inevitable, depending on what you think about the depth of corporate influence in our society.  Admittedly it was sped along its way by some mistakes and some hubris by the Ecuadorian team—although nothing that couldn’t be, and in fact was, “cured” by appropriate processes in the environmental case itself, and certainly nothing in comparison to what even Chevron’s staunchest supporters admit in private that you’d likely find if you were allowed to scrutinize its private files to the same extent as was allowed as to the Ecuadorian side.  Chevron’s success, while certainly propagated in “traditional” means by Chevron’s juggernaut public relations and government lobbying efforts, really hit its stride through innovative deployment of private institutions not traditionally associated with public narrative processes, such as white shoe law firms like Gibson Dunn & Crutcher, and, through them, its successful deployment public institutions including and no less than the court system itself.

I recognize this is a striking claim.  The court system did not just roll over for Chevron—plenty of courts pushed back, rejecting Chevron’s “crime-fraud” claims against the Ecuadorians and even calling out the problematic First Amendment implications of Chevron’s counter-attack.  But Chevron’s deployment of overwhelming resources changed the usual calculus of courts in the public debate.  The company filed so many lawsuits that it was able to use its massive PR machine to highlight its successes and spin away its losses.  It filed so many lawsuits it was able to “audition” literally dozens of judges, so that when it found a winner—such as the New York judge who began a preliminary hearing by railing against the “giant game” he thought the Ecuadorians were playing and bemoaning the influence of “imaginat[ive]” plaintiffs lawyers on the national character (“You know, we used to do a lot of other things [in this country]”)—it could double-down and throw resources in that direction.  A source close to the company estimated two years ago that the lawsuit that Chevron subsequently initiated in front of that New York judge was costing $400 million per year in legal and related fees.

In 2009, Chevron’s lead strategist noted in an internal email that the company’s “long-term strategy” in responding to the Ecuador case was to “demonize” its opponents, in particular Steven Donziger, my longtime colleague and a social justice activist who has dedicated much of his career to the Ecuadorian cause for over two decades now.  If you review the media coverage of the case and Donziger in the last five years, it’s hard not to come to the conclusion: job well done.  I’ve had a lot of support from friends and family over the years I’ve worked on the case, but most of the people who support me, and who I know otherwise support the Ecuadorians in their struggle for justice, don’t even follow it anymore.  They know the contamination is still there, the human suffering is still there.  They just don’t recognize the headlines.  And from some people who used to support the case, or who I would have thought would support the case, there is an icy silence.

But the ice may, finally, be cracking.

A huge driver of the thaw, if it comes, will be what the federal Court of Appeals for the Second Circuit does with the Ecuadorian’ pending appeal from the “racketeering” judgment against them entered by the aforementioned New York judge last year.  The U.S. media and the public generally, for generally good reasons, has a deep faith in the federal court system.  If the Second Circuit lets the racketeering judgment stand, I and my colleagues, knowing all the facts that the New York judge blocked from coming into the record during the fall 2013 bench trial, will know it as a travesty of justice.  But the rest of the country will see it as a duly considered matter—case closed.  (What courts in the rest of the world would think is an open question.)

But conversely, if the Second Circuit vacates the racketeering judgment—and oh my does it have plenty of good reasons to do so—the significance of Chevron’s racketeering case pivots.  It still remains relevant, but not as a question of what the Ecuadorians did or did not do in Ecuador.  It becomes a question of what Chevron did, on a global scale and at mind-boggling cost, in responding to its Ecuador liability not by taking responsibility but by instigating a massive retaliation campaign against its own victims based in large part on distorted, even invented evidence.  This is not an overstatement: as has been discussed elsewhere and will be detailed in future blogs, Chevron literally paid cash to “fact” witnesses for key testimony that it must have known could not be true, and that emerging evidence may conclusively prove to be untrue.

Our federal courts’ and our society’s willingness to embrace Chevron’s counter-narrative, even temporarily, raises important further questions.  In my view, it speaks to our persistent longing to believe that our society’s most powerful private institutions—not just oil companies and white shoe law firms, but, in other contexts, big banks, media conglomerates, technology companies—are “too big to lie,” are fundamentally good at heart, or otherwise can somehow be trusted to protect the public interest even as they pursue their private ones, without the draining exercise of regulation, enforcement, and constant public vigilance.  It is a longing that gets us into trouble again and again.

The Second Circuit will hear argument in the case on April 20.

There are very good reasons why, just on legal issues alone, the Second Circuit it likely to reverse the racketeering judgment.  After boasting for three years that it would take its racketeering case to a jury, Chevron dropped all its money damages claims on the eve of trial, allowing it to submit the case for decision solely to the “we-used-to-do-things-in-this-country” judge, not a jury.  But dropping damages left Chevron asking for a civil racketeering verdict based on forms of alleged injury more like hurt feelings than the sort of things that federals courts say are necessary for a plaintiff to have “standing” to proceed.  Chevron argues that because it asked for damages at the beginning of the case, it should get a pass on standing even though it later changed its mind.  That one’s not going to work.  Another glaring problem for the Second Circuit is that if Plaintiff Chevron is allowed to use the civil RICO statute as it has, an army of more typical big-money plaintiffs lawyers would use the precedent to bring actions against corporations without the hard work of proving damages, because under RICO they can recover triple attorneys fees even where no damages can be found.  The Second Circuit would turn into a haven for racketeering cases.

The law on this and a ton of other issues is so bad for Chevron that even it has started positioning itself for defeat.  As I noted in an earlier blog, Chevron recently pleaded for the Second Circuit, even if it reverses, to leave a portion of the judgment in place as a “freestanding determination of the facts,” even without legal consequence.  A nice idea—but completely unconstitutional, so long as the normal standards are being applied.  Also very unlikely in light of new developments in the form of new evidence, admittedly outside of the trial court record , which appears to conclusively show that Kaplan got the facts wrong.  Kaplan “found” that Ecuadorian judge Nicolas Zambrano did not author the Ecuadorian trial judgment but took a bribe to put his name on a judgment authored by the plaintiffs.  But a forensic analysis of the Ecuadorian judge’s hard drives apparently shows him writing the judgment, day by day, over the course of the months.  Even though Chevron is likely adapting its fraud theories to the new information as we speak, it is devastating to the company’s counter-narrative across the board.

What’s more, in Chevron’s massive international arbitration directly against the government of Ecuador, it has gotten everything it has asked for from the panel of arbitrators—until last week.  The arbitrators (who are convened by corporate investor complaints, even if they are sometimes appointed by States, meaning that they generally have an incentive to enhance the effectiveness of the arbitration forum for corporations by ruling in their favor) issued a pre-trial decision analyzing what has been Chevron’s primary defense/argument not just in the arbitration but in collateral litigation around the globe—in Ecuador, in New York, in Gibraltar, and in enforcement courts in Canada, Brazil, and Argentina.  The arbitrators concluded that the defense—that the Ecuadorians could not pursue their claims because they were barred by the terms of a 1995 release agreement Chevron worked out with the Ecuadorian government—was lacking.  The result is devastating for Chevron; the arbitration that was started as a way of bolstering its position and influencing the national-court jurisdictions that actually matter, has now turned into a liability in and of itself.  An arbitration trial on Chevron’s “fraud” facts—which as noted, are unraveling—is set to start April 20 before the same arbitrators.

Finally, there are rumors that the Supreme Court of Canada may soon authorize the Ecuadorians to begin a full-bore enforcement effort against Chevron in Canadian courts.  Other efforts to enforce the Ecuadorian environmental judgment in various countries that have been stuck in the ice the last five years are likely to break free and start moving too.

I’ll have more to say on these and other developments as we head into these important dates in April and beyond.